In Dedes v. Dedes, a relocation case, the Court of Appeal clarified the test for a material change of circumstances.  The parties separated in 2009.  They had three children.  In 2011, the parties entered into a consent order for joint custody with a week on, week off schedule for the children.  The consent order prohibited either party from relocating the children outside of the Tri-Cities.  The mother sought an order varying the consent order and permitting her to relocate with the children to Ontario.

After the parties separated in 2009, the mother started a relationship with someone new, Mr. Daniel, who lived in Ontario.  In late 2011, the mother, who worked as a flight attendant, moved her employment base from Vancouver to Ontario but continued commuting to Vancouver for her weeks of access.  The mother and Mr. Daniel married in 2013.

The mother gave evidence that the commute was wearing on her, she had better employment opportunities in Ontario, and wished to move to Ontario and regularize her life there.

The matter proceeded by way of a summary trial.  The chambers judge noted two major events occurred after the consent order was entered into: the mother moved her employment base from Vancouver to Ontario, and she married Mr. Daniel and now wanted to live with him, her children, and her stepchildren.

The chambers judge reasoned that by 2011, the mother “knew or ought to have known” that (1) Ontario offered better employment opportunities and (2) she intended to make her relationship with Mr. Daniel permanent.   It was reasonably foreseeable that she would move her employment base and remarry at the time of the consent order.  Therefore, there was no material change in circumstances as required by s. 17(5) of the Divorce Act; Gordon v. Goertz, [1996] 2 SCR 27 and Willick v.Willick, [1994] 3 SCR 670.  The Chambers judge dismissed the mother’s application.

The Court of Appeal considered a number of relevant authorities including Turpin v. Clark, 2009 BCCA 530 (leave to appeal ref’d, [2010] SCCA No 5); L.M.P. v. L.S., 2011 SCC 64; Powell v. Levesque, 2014 BCCA 33 and held that the test is not whether it was reasonably foreseeable that Ms. Daniel would marry Mr. Daniel and move to Ontario.  The test is whether the proposed move of the children to Ontario was actually contemplated at the time that the parties entered into the consent order in 2011 (at para. 25).  The decision of the chambers judge was set aside and remitted to the trial court to apply the proper test.